Notre Dame Law Review
Volume 89 | Issue 5
Article 9
5-2014
The Least Activist Supreme Court in History? The
Roberts Court and the Exercise of Judicial Review
Keith E. Whittington
Princeton University, [email protected]
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Recommended Citation
89 Notre Dame L. Rev. 2219 (2014).
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THE LEAST ACTIVIST SUPREME COURT IN
HISTORY? THE ROBERTS COURT AND THE
EXERCISE OF JUDICIAL REVIEW
Keith E. Whittington*
ABSTRACT
Not too many years ago, scholars could reasonably speak of the U.S. Supreme Court as being
among the most activist in American history. Both empirical and normative scholarship was
driven by the sense of a Court that was aggressive in the assertion of its own supremacy and
active in the exercise of the power of judicial review. The Court under Chief Justice John Roberts
cannot be viewed in the same way. The Roberts Court has issued its share of controversial
constitutional decisions, but a rarely observed but important feature of the Roberts Court is its
unusual restraint in the exercise of judicial review. By some measures, in fact, the Roberts Court
can thus far be called the least activist Supreme Court in history. This Article demonstrates that
the Roberts Court is deserving of that title and investigates some features of the exercise of judicial
review of the current Court compared to its recent predecessors. The Court has become less likely to
strike down federal laws, but importantly it has become far less likely to invalidate state laws.
Although the willingness of modern conservative jurists to strike down statutes is notable, the
declining ability of the liberals on the Court to form majorities willing to strike down state laws
has been particularly important to the creation of a restrained Court. The return of judicial
activism on the Supreme Court is likely to depend on the appointment of more liberal Justices to
the Court who could press the constitutional views that are now most often expressed in dissent.
INTRODUCTION
Not too many years ago, both activists and scholars were increasingly
alarmed by the apparent activism of the U.S. Supreme Court. Such critiques
of the Court have gradually faded, but have certainly not disappeared. Justice Ruth Bader Ginsburg only recently insisted that she needed to stay on
the Court in order to oppose what is “one of the most activist courts in history.”1 The Justices are still subjected to denunciations of particular deci 2014 Keith E. Whittington. Individuals and nonprofit institutions may reproduce
and distribute copies of this Article in any format at or below cost, for educational
purposes, so long as each copy identifies the author, provides a citation to the Notre Dame
Law Review, and includes this provision in the copyright notice.
* William Nelson Cromwell Professor of Politics, Princeton University. My thanks to
the participants in the Notre Dame Law Review Symposium and to Deborah Beim.
1 Adam Liptak, Court Is ‘One of Most Activist,’ Ginsburg Says, Vowing to Stay, N.Y. TIMES,
Aug. 25, 2013, at A1.
2219
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sions, but broad-gauged attacks on the activism of the Court have seemingly
receded.
The shifting critiques of the Court reflect an underlying reality. In
recent years the Court has been less active in exercising the power of judicial
review than it has at any point in its modern history. But even the earlier
critiques of an apparently activist Court obscured underlying trends in judicial review.
The Roberts Court is notably conservative, but that simple label provides
only a partial description of the recent Court. Chief Justice John Roberts is
himself part of a conservative majority that has often been able to shape the
recent development of constitutional law. But the Court remains divided
between more conservative and more liberal Justices, and those coalitions
offer competing visions of what the constitutional rules are and how they
ought to be applied. Over time, the liberal wing of the Court has often been
able to form majorities to strike down legislation, usually over the objections
of the conservative wing. Ironically, it is Ginsburg herself who is among the
most activist Justices on the current Court and represents the most likely
source of increased judicial invalidations.2
It has not been frequently observed that the Roberts Court has been
remarkably reluctant to exercise the power of judicial review. The Court in
recent years has struck down federal laws in fewer cases than has its predecessors. More importantly, the Court has struck down state laws in far fewer
cases than has been routine for the past century. This Court could plausibly
be described as the least activist Court in history, and this recent pattern
should also cause us to reevaluate the claims of activism during the late Rehnquist Court.
This Article proceeds in stages. Part I reviews claims that the contemporary Court has been the most activist in history. Part II develops the case for
thinking that the Roberts Court has instead been the least activist. Part III
examines the transformation of the Court through a series of snapshots of
constitutional decisions from the late Burger Court through the Roberts
Court. Part IV examines the constitutional decision making of the Roberts
Court in more detail.
I. THE MOST ACTIVIST COURT
IN
HISTORY?
During the late Rehnquist Court, cries of “judicial activism” were common.3 Much, though not all, of this attention was focused on the Court’s
invalidation of federal statutes. There was a notable uptick in how often the
Rehnquist Court struck down federal laws. Moreover, those laws were struck
down by slim 5 to 4 majorities, often with the same set of conservative Justices
2 See infra Section III.C.
3 See, e.g., Donald H. Zeigler, The New Activist Court, 45 AM. U. L. REV. 1367, 1367,
1369 (1996).
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leading the way.4 Those cases also tended to reflect a remarkably coherent
set of constitutional concerns. The Court repeatedly returned to the question of how far Congress was restrained by structural features of the Constitution, most notably federalism, and often found that Congress was limited in
ways that had not been emphasized by the Court since the first half of the
twentieth century. Unsurprisingly, this line of decisions attracted attention
from scholars and pundits alike.5
Charges of judicial activism from the political right have been familiar
for quite some time, and the Rehnquist Court heard its share of such complaints. In the aftermath of the 1992 abortion rights decision of Planned
Parenthood of Southeastern Pennsylvania v. Casey,6 authored by a trio of Reagan–Bush appointees, the conservative journal First Things sparked a
firestorm with its “End of Democracy” symposium7 pondering whether a
United States government dominated by an unrestrained Court had lost
legitimacy.8 Christopher Wolfe was among a group of conservative scholars
who continued through the 1990s and into the 2000s to denounce judicial
activism as a threat to republican government.9 For many on the right, “the
Court’s continuing injection of its power into so-called culture war issues” was
the primary concern and seemed unabated by the appointment of more conservative Justices.10 Conservative politicians continue to rail against judicial
activists, as evidenced by everything from bills introduced in Congress11 to
party platforms12 to congressional hearings.13
4 Tom Keck usefully pointed out, however, that these cases often involved more bipartisan judicial coalitions and more bipartisan legislative coalitions than has been commonly
observed. See Thomas M. Keck, Party, Policy, or Duty: Why Does the Supreme Court Invalidate
Federal Statutes?, 101 AM. POL. SCI. REV. 321, 330 (2007).
5 For one overview, see Keith E. Whittington, Taking What They Give Us: Explaining the
Court’s Federalism Offensive, 51 DUKE L.J. 477 (2001) (detailing the Rehnquist Court’s
unprecedented focus on federalism).
6 505 U.S. 833 (1992).
7 Symposium, The End of Democracy? The Judicial Usurpation of Politics, 67 FIRST THINGS
18 (1996).
8 RICHARD JOHN NEUHAUS, THE END OF DEMOCRACY?, at vii–x (Mitchell S. Muncy ed.,
1997); see also Richard J. Neuhaus, Rebuilding the Civil Public Square, 44 LOY. L. REV. 119, 119
(1998) (noting the “storm that swirled and continues to swirl around the symposium”).
9 See, e.g., CHRISTOPHER WOLFE, JUDICIAL ACTIVISM (1997).
10 THAT EMINENT TRIBUNAL 1–2 (Christopher Wolfe ed., 2004).
11 See, e.g., Congressional Accountability for Judicial Activism Act of 2004, H.R. 3920,
108th Cong. § 2 (proposing a means for congressional reversal of Supreme Court
judgments).
12 See, e.g., REPUBLICAN PLATFORM COMMITTEE, WE BELIEVE IN AMERICA: 2012 REPUBLICAN PLATFORM 25 (2012), available at http://www.gop.com/wp-content/uploads/2012/
08/2012GOPPlatform.pdf (discussing judicial activism as a threat to the Constitution).
Notably, the 2012 GOP platform did admit that there had been “improvements as a result
of Republican nominations to the judiciary.” Id.
13 See generally Judicial Activism: Defining the Problem and Its Impact: Hearings on S.J. Res. 26
Before the Subcomm. on the Constitution, Federalism, and Prop. Rights of the S. Comm. on the Judiciary, 105th Cong. 1 (1997) (“This morning’s hearing is the first in a series of three hearings
which will examine the challenges and the problems of judicial activism, how it impacts
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Perhaps more notable has been the resurgence of critiques of judicial
activism from the left. Such criticisms of the courts were once familiar, roiling political and intellectual debate in the early twentieth century,14 but had
been muted by the revolutions in constitutional law since the New Deal.15
Over the past couple of decades, the left has rivaled the right in its perception of growing judicial activism. Symposia and panel discussions have been
organized to analyze “conservative judicial activism.”16 Trade books were
written denouncing right-wing judicial activism.17 Liberal democratic politicians have begun to worry about judicial activism.18 Academic concerns with
a growing “judicial supremacy” during the Rehnquist Court dovetailed with
an emerging literature calling for a “popular constitutionalism” that would
take the Constitution away from the Court19—all of which amounts to a “new
activist Court.”20
people, and what can be done about the problem of judicial activism.” (statement of Sen.
John Ashcroft)).
14 See, e.g., WILLIAM G. ROSS, A MUTED FURY (1994) (detailing the origins of the hostility and controversy toward the Court during the Progressive Era).
15 See generally Martin Shapiro, Fathers and Sons: The Court, the Commentators, and the
Search for Values, in THE BURGER COURT 218 (Vincent Blasi ed., 1983).
16 See, e.g., Ernest A. Young, Judicial Activism and Conservative Politics, 73 U. COLO. L.
REV. 1139, 1139 (2002) (“It is very much in vogue these days to accuse the current Rehnquist Court of ‘conservative judicial activism.’”).
17 See, e.g., RONALD DWORKIN, THE SUPREME COURT PHALANX (2008) (examining
Supreme Court decisions in 2006 and 2007 and arguing that the Court’s conservative Justices have taken unprecedented steps toward partisan, activist decision making); JAMIN B.
RASKIN, OVERRULING DEMOCRACY 3–10 (2003) (arguing that a new set of protections guarding basic democratic rights must be developed in light of aggressive judicial activism on the
Supreme Court); THE REHNQUIST COURT: JUDICIAL ACTIVISM ON THE RIGHT (Herman
Schwartz ed., 2002) (collecting essays documenting the Rehnquist Court’s dramatic shift to
the right).
18 See, e.g., Barack Obama: Remarks to the White House Press Pool and an Exchange with
Reporters, AM. PRESIDENCY PROJECT (Apr. 28, 2010), http://www.presidency.ucsb.edu/ws/in
dex.php?pid=87815 (“Q[:] Senator Leahy’s been talking a lot about conservative judicial
activism . . . . The President[’s response:] . . . It used to be that the notion of a[n] activist
judge was somebody who ignored the will of Congress, ignored democratic processes, and
tried to impose judicial solutions on problems instead of letting the process work itself
through politically. And in the sixties and seventies, the feeling was, is that liberals were
guilty of that kind of approach. What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.”).
19 See LARRY D. KRAMER, THE PEOPLE THEMSELVES 8 (2004) (arguing for a return back
to the original understanding of the Constitution as one where “[f]inal interpretive authority rested with the ‘people themselves,’ and courts no less than elected representatives were
subordinate to their judgments”); MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM
THE COURTS, at x–xi (1999) (advocating for a “populist constitutional law” that provides a
people-centered interpretation to the Constitution); Rachel E. Barkow, More Supreme Than
Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 COLUM.
L. REV. 237, 237, 330 (2002) (discussing the “rise of judicial supremacy” and noting that “a
recent trend in the academic literature is to identify issues that are better left to the political branches instead of the courts”).
20 Zeigler, supra note 3, at 1367.
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The framing of judicial activism has changed somewhat with the shift in
ideological valence. It is perhaps telling that President Obama framed judicial activism as opposing the “will of Congress,”21 while conservatives have
tended to focus more on the judicial nullification of state laws. Democratic
Representative Elijah Cummings characterized as a “staggering assertion of
judicial activism” the possibility of the Justices “dismiss[ing] the legitimacy of
our votes in Congress” by striking down federal statutory provisions.22 Senator Patrick Leahy has denounced conservative Justices for obstructing the
congressional will, contending that “[i]t is the very definition of judicial activism when a court imposes a rule of decision rejected by its own precedent
and rejected by Congress.”23 Early on, Linda Greenhouse took to the pages
of the New York Times to warn of a “radical” Court that was upsetting “[l]ongheld assumptions about the authority of the national government.”24
One useful perspective on the Rehnquist era that both captured this gist
and offered an explanation for the activist turn is provided in Thomas Keck’s
The Most Activist Supreme Court in History.25 Keck’s wide-ranging study is ultimately concerned with tracing the abandonment of a tradition of judicial
self-restraint most closely associated with Justice Felix Frankfurter. No subsequent Justice has embraced the posture of across-the-board deference to legislatures in the exercise of constitutional review that Frankfurter advocated.
The Warren Court instead adopted a vision of “rights-based constitutionalism” that marked out a robust role for the judiciary in monitoring and checking the other branches of government.26 The Warren Court’s decisions
continue to shape conceptions of the judicial role, even if the particular substance of constitutional law has been in flux.
Keck observes that the invalidation of statutes by the U.S. Supreme
Court has varied over time.27 The brief period of Frankfurter’s greatest influence, from the introduction of the Court-packing plan to his departure from
the bench in 1962, also marked a period of unusual restraint for the modern
21 Barack Obama: Remarks to the White House Press Pool and an Exchange with Reporters,
supra note 18.
22 Elijah E. Cummings, Justice Scalia’s Staggering Assertion of Judicial Activism, THE HILL’S
CONG. BLOG (Mar. 8, 2013, 7:30 PM), http://thehill.com/blogs/congress-blog/judicial/28
7037-justice-scalias-staggering-assertion-of-judicial-activism.
23 Press Release, Senator Patrick Leahy, Judiciary Committee Look at SCOTUS Rulings in Age Discrimination, Arbitration Cases (Oct. 7, 2009), http://www.leahy.senate.gov/
press/leahy-judiciary-committee-look-at-scotus-rulings-in-age-discrimination-arbitration-ca
ses (quoting the statement of Senator Patrick Leahy, Chairman of the Judiciary Committee, regarding the hearing on “Workplace Fairness: Has the Supreme Court Misinterpreted
Laws Designed to Protect American Workers”).
24 Linda Greenhouse, Farewell to the Old Order in the Court: The Right Goes Activist and the
Center Is a Void, N.Y. TIMES, July 2, 1995, at E1.
25 THOMAS M. KECK, THE MOST ACTIVIST SUPREME COURT IN HISTORY (2004).
26 Id. at 4–5.
27 See id. at 39–41 (documenting the variation in invalidations in Table 2.1).
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Court.28 Subsequently, the Court became more active, striking down statutes
at a higher rate, either on behalf of a liberal rights agenda or a conservative
rights agenda. Importantly, Keck contends that once the “conservative
majority started to come into its own,” the late Rehnquist Court embarked on
a period of “extraordinary activism.”29 Moreover, he explains this shift by
focusing on the willingness of the pivotal Justices on the Court, Sandra Day
O’Connor and Anthony Kennedy, to endorse a program of both liberal and
conservative activism.30 The willingness of those Justices to form coalitions
from both ideological directions pushed the Court to ever-greater heights of
activism.
It is worth noting an alternative perspective on the late Rehnquist Court
offered by Mark Tushnet. For Tushnet, this was a “chastened” Court that did
not have the kind of ambition of its predecessors.31 Tushnet is less focused
than Keck on the exercise of judicial review per se and the number of laws
struck down, and his explanation for changes in the Court is less concerned
with the internal intellectual development of the Justices than with the external political environment that might have consequences for the Court’s
agenda.32 As a good ally (or instrument) of a broader political coalition, the
Court should dutifully serve the needs of that coalition. The conservative
Court of the post–Reagan era is treading water, neither undertaking dramatic new initiatives nor significantly retrenching received doctrine.33
The larger constitutional regime provides the rationale for this more
chastened Court. The “big government” of the Great Society needed “a big
Court” to help achieve its goals.34 Post–New Deal liberals needed the judiciary to help them accomplish their political aims, which could not all be
achieved efficiently and effectively through the legislative process.35 The key
28 During this period (which Keck labels as the Roosevelt Court and the Early Warren
Court), the annual average of federal invalidations, noted in Keck’s Table 2.1, was 0.5 and
the annual average of state invalidations was 7.23 in Table 2.2, both well below the twentieth-century norms. Keck identifies the “Late Rehnquist Court” as occupying the years 1995
to 2003. Id. at 40–41.
29 Id. at 203.
30 Id. at 199–201.
31 Mark Tushnet, Foreword: The New Constitutional Order and the Chastening of Constitutional Aspiration, 113 HARV. L. REV. 29, 33 (1999) [hereinafter Tushnet, Chastening]. For an
expansion on this article, see MARK TUSHNET, THE NEW CONSTITUTIONAL ORDER (2003).
32 See Tushnet, Chastening, supra note 31, at 32 (stating that “we cannot understand
the Supreme Court’s work as a whole without understanding the interaction between the
president and Congress in staffing the Court”).
33 Id. at 64.
34 Id. Also, “[a]n activist government necessarily included an activist Court collaborating with the other branches of the national government to implement the regime’s principles.” Id. at 68–69.
35 See LUCAS A. POWE, JR., THE SUPREME COURT AND THE AMERICAN ELITE, 1789–2008, at
248–311 (2009); Howard Gillman, Party Politics and Constitutional Change: The Political Origins of Liberal Judicial Activism, in THE SUPREME COURT AND AMERICAN POLITICAL DEVELOPMENT 138–68 (Ronald Kahn & Ken I. Kersch eds., 2006); see also KEITH E. WHITTINGTON,
POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY 119–120, 126–30 (2007).
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difference between the political environment of the Warren Court and that
of the Rehnquist Court, Tushnet contends, is that the crucial political constituencies of the contemporary era “need less help from the Court than did the
prior regime’s constituencies.”36 Those constituencies “have already
achieved substantial success in the political arena, leaving to the Court only
some modest judicial moves on the margins of the issues that concern those
groups.”37 Contemporary political interests are more involved in obtaining
favorable legislation and administrative actions than in striking them down,
leaving the courts with relatively little to do with the power of judicial review.
The enhanced awareness of the political branches of the requirements of the
new constitutional order renders “the need for judicial intervention . . . rare.”38 Whereas for Keck the conservative constitutional order of
the contemporary era features a rights constitutionalism that invites an active
role for the Court, Tushnet’s conservative constitutional order emphasizes
tax cuts and deregulation and, as a consequence, sidelines the Court.39
Undoubtedly, both narratives have an element of truth, with the Court’s
recent work being less politically salient than in the Warren years, even if the
recent Justices have been equally or more willing to override legislative
decisions.
II. THE LEAST ACTIVIST COURT
IN
HISTORY?
The building narrative from the right and from the left that we have
fully entered an age of judicial supremacy and unprecedented judicial activism overlooks some important features of the Court’s exercise of judicial
review even in the Rehnquist era. Moreover, the narrative of “extraordinary
activism” hardly fits the Roberts Court at all. Indeed, the Roberts Court has a
plausible claim to being the least activist U.S. Supreme Court in history, and
it has established that claim by building on tendencies that were already visible during the Rehnquist era.
Keck and Tushnet are no doubt correct that Frankfurter’s philosophy of
Thayerian deference has found few adherents since the mid-twentieth century. More importantly, the individuals who have been successfully
appointed to the Court have not been heirs of such progressive jurists as
Felix Frankfurter and Learned Hand. Contemporary Justices have an expansive view of their own authority and role within the political system, and they
remain committed to the idea that a vast number of controversies can be
brought before them for authoritative resolution. This Court, like others
before it, embraces the notion of judicial supremacy. But judicial supremacy
does not necessarily translate into judicial activism.
36 Tushnet, Chastening, supra note 31, at 64.
37 Id. at 67.
38 Id. at 70.
39 See id. at 68–69.
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The term “judicial activism” is, of course, crude and unavoidably political.40 Judicial activism has long been a term of invective and thus is hard to
use as a neutral description of judicial behavior. Moreover, judicial activism
has been used in myriad ways over time. In political discourse, judicial activism is a deeply ambiguous concept. Even so, the idea has a resonance that
remains useful. Empirical scholars have tried to recover the core of the idea
of judicial activism in order to identify something that is measurable, relatively objective, and comparable across contexts.41 In such studies, “judicial
activism” is used to refer to the relative frequency of judicial invalidation of
statutory provisions as inconsistent with constitutional requirements.42
Activist courts strike down statutes in many cases; restrained courts more
rarely declare legislation to be unconstitutional. This is the starting point for
Keck’s own analysis.43 I trade on that convention here as well, while admitting its limitations.44
My starting point is to observe that the Roberts Court has invalidated
statutes in fewer cases per year than had any previous modern Court.45
40 See Bradley C. Canon, Defining the Dimensions of Judicial Activism, 66 JUDICATURE 236,
237 (1983); Keenan D. Kmiec, The Origin and Current Meanings of “Judicial Activism,” 92
CAL. L. REV. 1441, 1443 (2004).
41 There are, no doubt, other useful ways to conceptualize judicial activism and to
construct a portrait of the contemporary Court. For present purposes, I hope to bracket
both normative assessments of the relative activism of recent Courts and alternative
approaches to thinking about what constitutes activism and restraint. See, e.g., Alpheus
Thomas Mason, Judicial Activism: Old and New, 55 VA. L. REV. 385, 389 (1969) (distinguishing between “negative activism” that obstructs democracy and “positive [activism]” that
promotes civil liberties and democracy).
42 See, e.g., Gregory A. Caldeira & Donald J. McCrone, Of Time and Judicial Activism: A
Study of the U.S. Supreme Court, 1800–1973, in SUPREME COURT ACTIVISM AND RESTRAINT
103–27 (Stephen C. Halpern & Charles M. Lamb eds., 1982) (modeling the “process of
change in the level of judicial activism”); STEFANIE A. LINDQUIST & FRANK B. CROSS, MEASURING JUDICIAL ACTIVISM 29–46 (2009); Sujit Choudhry & Claire E. Hunter, Measuring
Judicial Activism on the Supreme Court of Canada: A Comment on Newfoundland (Treasury
Board) v. Nape, 48 MCGILL L.J. 525, 532 (2003) (“This measure . . . posits that courts are
more activist the more frequently they find that democratically elected institutions have
acted unconstitutionally.”); Lori A. Ringhand, Judicial Activism: An Empirical Examination of
Voting Behavior on the Rehnquist Natural Court, 24 CONST. COMMENT. 43, 44 (2007) (performing an “empirical examination” by examining how often the Court invalidates legislation
and overturns precedent).
43 See KECK, supra note 25.
44 It should be noted that the constitutional review of statutes does not exhaust the
constitutional adjudication of the Court. The Court also develops and applies constitutional law in evaluating the actions of judges and executive branch officials that does not
implicate the scope of legislative authority or legislatively endorsed policy. Such cases are
excluded from the analysis of this Article.
45 As the discussion above already suggests, periodizing the history of the U.S.
Supreme Court by the tenure of the Chief Justice is unavoidably crude. “History’s Warren
Court” is not the Supreme Court of 1959, but the Supreme Court of 1965. Nonetheless,
focusing our attention initially on the Roberts Court seems like a convenient entry point
for thinking about recent judicial history. John Roberts has only served as Chief Justice for
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Under Chief Justice Roberts, the Court has struck down statutes at an annual
average rate of 3.8 cases, which is the fewest since before the Civil War (only
the Gilded Age Courts are even close).46 The rate of invalidation is a bit
more complicated if cases involving federal laws are distinguished from cases
involving state laws.47 Over the course of the Court’s history, it has been far
more active in striking down state laws than federal laws.48 This tendency no
doubt reflects both the relative political vulnerability of the states to federal
judicial oversight (compared to the coordinate branches of the federal government) and the relative abundance and diversity of state laws compared to
congressional statutes. The Roberts Court has struck down federal law in
fewer cases, on average, than any modern Court, with the exception of the
immediate post–New Deal Courts.49 The change is even more striking in
cases involving the invalidation of state laws. The Roberts Court has struck
down state laws in fewer cases per year than any Court since the Civil War, by
a significant margin.50
eight years at this point, which is not yet at the historical median tenure of eleven years for
a Chief Justice. It is likely a long enough tenure, however, to justify an initial assessment of
his Court. Roberts’s tenure is comparable, for example, to that of Salmon Chase or William Howard Taft.
46 The numbers here reflect cases heard and decided by the Court, as is conventional.
This ignores a variety of potentially salient features of those cases. The analysis treats each
case (and statute) as equivalent. It counts cases striking statutes, rather than statutes
struck. The legal implications of a given case might well extend to numerous statutes. It
brackets the question of legislative activity, as well as how many and what type of statutes
the courts might confront. For a more comprehensive examination of the judicial review
of federal statutes, see KEITH E. WHITTINGTON, REPUGNANT LAWS (forthcoming 2015).
47 For the analysis of the constitutional review of federal statutes, this Article draws on
the Judicial Review of Congress database. The construction of the database is described in
Keith E. Whittington, Judicial Review of Congress Before the Civil War, 97 GEO. L.J. 1257,
1262–66 (2008). In short, the dataset was constructed through a full-text electronic search
of all U.S. Supreme Court cases for a number of terms associated with known cases of
judicial review. All cases identified by that search process were then read in order to identify the set that in fact involved the substantive review of the constitutionality of a federal
statutory provision as it applied to the case before the Court. This resulted in a comprehensive inventory of all cases across American history in which the Court either upheld the
application of a statute against constitutional challenge or blocked the application of a
statutory provision on constitutional grounds. The dataset consists of just under 1300
cases, just over a quarter of which involve the invalidation or narrowing of a statutory provision given constitutional limits on the legislative authority of Congress.
48 The political significance of this vertical judicial review is explored in Barry Friedman & Erin F. Delaney, Becoming Supreme: The Federal Foundation of Judicial Supremacy, 111
COLUM. L. REV. 1137, 1159 (2011), and Keith E. Whittington, “Interpose Your Friendly Hand”:
Political Supports for the Exercise of Judicial Review by the United States Supreme Court, 99 AM. POL.
SCI. REV. 583 (2005).
49 The annual average rate for the Roberts Court has been 2.3 federal statutes per
year, which exceeds the rates of the Stone and Vinson Courts that struck federal laws at a
rate of fewer than 2 statutes per year. All discussion of constitutional cases involving federal statutes draws on the Judicial Review of Congress dataset. See supra note 47.
50 The annual average rate for the Roberts Court has been 1.6 state statutes per year.
The Chase Court is the next closest since the Civil War, and it struck down state laws at an
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FIGURE 1: U.S. SUPREME COURT CASES INVALIDATING STATUTES, 1789–2012
25
Cases Invalidating Federal Laws
20
Cases Invalidating State Laws
15
10
5
17
8
17 9
9
18 9
09
18
1
18 9
2
18 9
3
18 9
4
18 9
59
18
6
18 9
7
18 9
8
18 9
9
19 9
0
19 9
19
19
2
19 9
39
19
4
19 9
5
19 9
6
19 9
7
19 9
89
19
9
20 9
09
0
Note: Centered, five-year moving average of the number of cases striking down state
and federal laws. Data on state laws derived from The Constitution of the United States:
Analysis and Interpretation. Data on federal laws derived from the Judicial Review of
Congress database.
There are a variety of ways to contextualize this basic pattern. Figure 1
shows a centered, five-year moving average of the number of cases decided by
the U.S. Supreme Court that find either a federal law or a state law unconstitutional. By smoothing annual fluctuations, the moving average makes the
patterns in the data somewhat more evident. There has been substantial variation in the number of both types of cases over time. The Court has been
active throughout its history in striking down state and federal laws, but has
generally decided more cases invalidating state laws than federal statutes.51
The several peaks and troughs of judicial activity in exercising the power of
constitutional review have followed somewhat similar patterns across cases
involving state laws and cases involving federal laws. For both types of cases,
average rate of 3.3 statutes per year. The identification of cases invalidating state laws is
derived from the list maintained by the Congressional Research Service and published in
THE CONSTITUTION OF THE UNITED STATES: ANALYSIS AND INTERPRETATION, S. DOC. NO. 1129, at 2327–502 (2013).
51 For the U.S. Supreme Court activity evaluating the constitutionality of federal laws
in the decades prior to the Civil War, see Whittington, supra note 47. For the years surrounding the turn of the twentieth century, see Keith E. Whittington, Congress Before the
Lochner Court, 85 B.U. L. REV. 821, 829–38 (2005).
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there was an uptick in activity after the Civil War, in the early twentieth century, and the second half of the twentieth century. Within these broad
phases of relative activism and restraint, there are some minor divergences
between how the Court treated federal and state law. The invalidation of
state laws spiked relative to federal laws in the late 1880s, and the Court’s
nullification of state laws preceded the nullification of federal laws in the
early twentieth century (peaking for the states with the Taft Court in the
Progressive Era rather than Hughes Court during the New Deal) and in the
latter twentieth century (peaking for the states with the late Warren and early
Burger Courts rather than the Rehnquist Court for Congress). The swings in
the invalidation of state laws have been more dramatic than in the number of
cases involving federal law, but particularly striking is the abrupt fall in the
number of cases limiting state legislatures since the 1980s, returning the
Court to levels not seen since the Civil War. As a consequence, the total
number of cases imposing constitutional limits on legislatures has been held
to a number that the Court has not seen for a sustained period since the
nineteenth century.
The simple variation in the count of cases over time can be somewhat
misleading, however, since the baseline rate of judicial review has not been a
constant over the Court’s history. There have been three fairly clear inflection points in how often the Court uses the power of judicial review to strike
down statutes, but the timing of those shifts are slightly different for the
review of state laws versus the review of federal laws. The Court struck down
state laws at a fairly stable rate through 1866 and plateaued at a significantly
higher level through 1912 before establishing a new baseline that has
endured to the present. Similarly, the Court’s pace of invalidations of federal
laws jumped in 1877 and again in 1920. Within these three broad regimes
established by the transition out of the Civil War and the battles of the Progressive Era, there were bursts of relative activism and restraint. What would
have seemed like restraint for the post–War Vinson Court would have
seemed like outrageous activism to the antebellum Taney Court. Thus, we
can normalize the Court’s record of judicial review by controlling for the
average number of cases striking down statutes in any given historical period.
The variation around the trendline shows more clearly the pattern of activism and restraint relative to the historical era.52
Contextualizing the Roberts Court indicates just how restrained it has
been. Figure 2 treats cases involving state and federal laws separately, but,
unlike Figure 1, normalizes the annual count of such cases. The Court since
2000 has been unusually restrained for the modern era, invalidating federal
laws at a relatively low rate and striking down state laws at a historically low
rate. The Roberts Court rivals the post–New Deal Court for its restraint in
striking down laws, exceeding it slightly in its depth. Moreover, the period of
restraint shown by the contemporary Court is now starting to rival the early
Frankfurterian Court in its duration. Unless something like the Warren
52 This approach is modeled after Caldeira & McCrone, supra note 42.
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Court succeeds the current Court, we might well look back on the late 1980s
as an inflection point of its own, marking out a new, lower baseline in the
historical pattern of judicial review. Ironically, the Rehnquist Court that was
denounced as among the most activist might instead be the harbinger of a
period of sustained judicial restraint not seen since before the Progressive
Era.
FIGURE 2: JUDICIAL ACTIVISM
RESTRAINT
1867–2012
AND
BY THE
U.S. SUPREME COURT,
25
20
Federal Deviation from Period Mean
State Deviation from Period Mean
15
10
5
0
-5
-10
18
67
18
78
18
89
19
00
19
11
19
22
19
33
19
44
19
55
19
66
19
77
19
88
19
99
20
10
-15
Note: Annual count of cases invalidating federal and state laws, normalized by historical period. Historical periods for judicial review were state laws beginning in 1867
and 1913 and for federal laws in 1877 and 1920.
Ultimately, we should focus more closely on the dynamics associated
with the contemporary period. Figure 3 illustrates from yet a different perspective the pattern of decline in the exercise of judicial review by the U.S.
Supreme Court in recent decades. In this figure, the annual counts of cases
invalidating state and federal laws are stacked in a single column.53 The
trend from the beginning of the Warren Court to the present is evident.
53 For purposes of thinking about judicial activism generally, there is little obvious
reason for distinguishing state and federal cases. Federal cases are not, intrinsically, more
politically salient than state cases, and judicial decisions invalidating or upholding statutes
may be either sweeping or limited in their policy and legal effects. Whether involving
federal or state legislation, these cases provide the Court with the opportunity to establish
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Moreover, as Figure 2 also suggests, the cases invalidating state laws are the
true driving force of this contemporary trajectory. There has been fluctuation in the number of cases striking down federal laws over the past forty
years, but the number of cases striking down state laws has inexorably
declined, putting the Court on its current path.
FIGURE 3: NUMBER
OF
U.S. SUPREME COURT CASES INVALIDATING STATUTES,
1969–2012
40
State Invalidations
35
Federal Invalidations
30
25
20
15
10
5
72
19
75
19
78
19
81
19
84
19
87
19
90
19
93
19
96
19
99
20
02
20
05
20
08
20
11
19
19
69
0
Note: Annual count of cases invalidating federal and state laws.
III. FROM
THE
BURGER COURT
TO THE
ROBERTS COURT: FOUR SNAPSHOTS
The seeds of the judicial restraint evident in the Roberts Court were
planted in the years before Chief Justice John Roberts reached the bench.
The early Burger Court stands as among the most activist in the Court’s history. The puzzle is in identifying what distinguishes these Courts, and how
the Burger Court developed into the Roberts Court. There is little question
that the Court since Chief Justice Earl Warren’s departure in 1969 has been a
generally conservative Court, with the median Justice occupying an ideological space to the right of where the Court stood in the decades prior to President Richard Nixon’s appointments.54 Although the Court as a whole may
not have ever been as conservative as some hoped, or feared, the Court since
and enforce constitutional limits on legislatures and obstruct public policy, with varying
effects.
54 See infra note 55.
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the Nixon era has been characterized by Republican appointments and a
generally more conservative orientation to constitutional law and
adjudication.55
The approach of this Article is to examine the development of the Court
through a series of snapshots of constitutional decisions from the late Burger
Court through the Roberts Court. In particular, this Article focuses its attention on four two-year periods: 1981–1982, 1989–1990, 1998–1999, and
2007–2008. These samples of the Court’s constitutional adjudication give a
representative perspective on the activities of the late Burger, early and late
Rehnquist, and Roberts Court and track the decline in judicial activism from
the Burger era to the Roberts era.56 These samples capture the appointment
of Justice O’Connor—the first Reagan Justice—to the Burger Court, the
Rehnquist Court with Justice Kennedy replacing Justice Powell and again
during the long period of stability with two four-Justice coalitions arrayed
around Justice Kennedy, and then finally the core line-up of the Roberts
Court. The samples are evenly spaced across this period of the Court’s history, with some minor adjustments to better capture changes in the personnel on the Court and meaningful judicial review activity.
A.
The Late Burger Court
The Court just after Ronald Reagan’s inauguration had already been
under the leadership of Chief Justice Warren Burger for over a decade. During the 1981–1982 window, Reagan’s first nominee, Sandra Day O’Connor,
55 There are two common approaches to measuring the relative conservatism of the
Supreme Court in the judicial politics literature. Bailey scores situate the Justices relative
to each other and the other branches based on a common set of votes and policy statements. Michael A. Bailey, Comparable Preference Estimates Across Time and Institutions for the
Court, Congress, and Presidency, 51 AM. J. POL. SCI. 433, 442 (2007). Martin-Quinn (or more
broadly, Judicial Common Space) scores do the same, but rely on voting behavior and
make somewhat different statistical assumptions. Lee Epstein et al., The Judicial Common
Space, 23 J.L. ECON. & ORG. 303, 307 (2007). Both show that the Court became more
conservative with Warren’s departure and has remained so since. See Bailey, supra, at 435
fig.2; Epstein et al., supra, at 312 fig.4. More concretely, the median member of the Court
went from being far to the left of the median member of the House of Representatives
during the Warren era to being relatively close to the House afterwards (the two measures
differ on whether the Court is to the right or left of the House after 1969). See Bailey,
supra, at 435 fig.2; Epstein et al., supra, at 313 fig.6. Put differently, the median of the
Court shifted from Justice Brennan in the Warren Court to Justice White in the Burger
Court to Justice O’Connor in the Rehnquist Court. The median of the average majority
coalition that formed on those Courts tells a similar story. See generally Deborah Beim et al.,
Policy and Disposition Coalitions on the Supreme Court of the United States (Oct. 23,
2010) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abs
tract_id=1641542.
56 The cases of judicial review of state laws for this analysis are identified through a
similar process that was used to construct the Judicial Review of Congress database. The
search of state cases, however, focused on the introductory materials in the U.S. Reports
(particularly the syllabus), which are generally reliable in identifying instances of statutory
provisions being upheld or struck down in the modern period.
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joined the bench, replacing the centrist Potter Stewart.57 O’Connor joined a
Court characterized by a large bloc of centrist Justices who held sway between
two smaller blocs of liberals (anchored by Brennan and Marshall) and conservatives (anchored by Rehnquist and Burger).58 As Figures 1 and 2 indicate, by 1981 the Burger Court was significantly off its peak of judicial
invalidations from a decade earlier, but the Court was still within the historic
wave of activism that began during the Warren era.
Reflecting the prominence of the group of centrists, the coalitions to
invalidate legislation in this sample tended to be large and ideologically
diverse. Narrow majorities were rare, whether the Court was striking down or
upholding statutes. The median number of Justices that joined a decision
striking down a state law during these years was six. Building such sizable
majorities required pulling in not only liberal Justices like William Brennan
and John Paul Stevens but also more conservative Justices like Lewis Powell
and Byron White. Brennan may have known how to count to five, but getting
five usually meant getting six or seven on the late Burger Court.59
For a Court with a relatively conservative reputation, however, those
coalitions to nullify laws tended to be built from the left. True to his Burgerera moniker as the “Lone Ranger,” Justice Rehnquist tended to join only the
largest of majorities voting to strike down legislation (two of the four decisions invalidating state laws that Rehnquist joined were unanimous). By contrast, Justices Brennan and Marshall were members of all but two of the
coalitions that struck down laws during these years. They were also the least
likely to join majorities upholding laws against constitutional challenge. The
Burger Court in 1981–1982 was not as activist as Brennan and Marshall would
have preferred, but they rarely thought that the Court had struck down an
undeserving law. By contrast, the most conservative members of the Court at
that time were the most likely to vote to uphold statutes and the least likely to
vote to strike them down.
Judicial review of federal statutes did not drive the Court’s activism at the
start of the Reagan era. In 1981, the Court did not strike down any federal
statutory provisions, the first such occasion since the 1940s. In 1982, the
Court invalidated provisions of two bankruptcy acts.60 Those cases hardly
raised hot-button issues, and one was decided unanimously.61 The Justices
were busy hearing constitutional challenges to federal statutes, however. The
Court rendered decisions in over a dozen cases contesting the constitutional57 Reagan’s Nomination of O’Connor, NAT’L ARCHIVES, http://www.archives.gov/legisla
tive/features/oconnor.html (last visited Apr. 9, 2014).
58 On the composition of the Burger Court, see Keith E. Whittington, The Burger Court
(1969–1986): Once More in Transition, in THE UNITED STATES SUPREME COURT 300 (Christopher Tomlins ed., 2005). A convenient mapping of the voting patterns of the Justices can
be found at www.targetpointconsulting.com/scotusscores-labels.html.
59 On Brennan’s understanding of the “most important rule in constitutional law,” the
rule of five votes, see MARK TUSHNET, A COURT DIVIDED 35 (2005).
60 See United States v. Sec. Indus. Bank, 459 U.S. 70 (1982); N. Pipeline Constr. Co. v.
Marathon Pipe Line Co., 458 U.S. 50 (1982).
61 Sec. Indus. Bank, 459 U.S. 70.
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ity of congressional actions, but the Justices almost always turned back those
challenges and upheld the actions of the government. At that point, it was
the liberal wing of the Court that would have preferred to strike more of
those congressional statutes down as unconstitutional. When the majority
upheld the congressional directive that only men had to register for the military draft or allowed Congress to give a smaller disability subsidy to those
residing in mental institutions, for example, the liberal Justices were in dissent.62 The notable exception to that pattern came in the area of campaign
finance, with the conservative Justices dissenting from a narrow majority that
upheld limits on the amount that individuals could donate to political action
committees.63
The action was in the cases involving the constitutionality of state laws.
The Court heard more of them in these two years (over three dozen) and
struck them down at a higher rate (roughly half of those challenges resulted
in an invalidation). But where Rehnquist joined the majority to strike down
laws in only seven of those cases, Brennan joined nineteen. Sometimes those
majorities were narrow, as when the Court struck down Wisconsin’s directive
of how political parties choose presidential nominating convention delegates,64 San Diego’s restriction on roadside billboards,65 or Seattle’s public
initiative requiring that children attend neighborhood schools.66 At other
times, the coalitions were quite broad, as when the Court struck down Berkeley’s limitation on campaign donations to political action committees supporting ballot measures,67 a Massachusetts statute allowing churches to block
the issuance of liquor licenses to nearby businesses,68 or the application of an
Ohio statute requiring the publication of the names of donors to the political
campaigns of minor parties.69
What united the large number of cases challenging state and local ordinances was the need for the Justices to clarify the application of relatively new
and complex constitutional rules. The Burger Court in these years was not
developing bold new doctrinal initiatives so much as it was managing the
fallout from earlier decisions. Over a decade later, the Justices were still
deeply enmeshed in the constitutional dialogue between judges and legislators that had been set off by the constitutional revolution of the 1960s and
early 1970s. New constitutional rules regarding everything from campaign
finance to expressive speech to sexual equality left the state of the law unset62 Rostker v. Goldberg, 453 U.S. 57, 83 (1981); Schweiker v. Wilson, 450 U.S. 221, 239
(1981).
63 Cal. Med. Ass’n v. FEC, 453 U.S. 182, 184–85 (1981).
64 Democratic Party v. Wis. ex rel. La Follette, 450 U.S. 107, 126 (1981).
65 Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 521 (1981) (6-3 decision).
66 Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 487 (1982) (5-4 decision).
67 Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 300 (1981) (8-1
decision).
68 Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 127 (1982) (8-1 decision).
69 Brown v. Socialist Workers ’74 Campaign Comm., 459 U.S. 87, 102 (1982) (6-3
decision).
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tled, and the Justices found that the devil was in the details.70 Even when a
majority voted to uphold statutes against constitutional challenge, such as a
ban on nude dancing where liquor is served,71 a parental-notice requirement
for abortions,72 or the restriction on the remedial powers of state court
judges in desegregation cases,73 the correct application of the law was uncertain given the Court’s own recent decisions. Given that those rulings often
turned on how aggressively the Court should now extend the logic of earlier
liberal doctrinal innovations, it is perhaps unsurprising that the liberal wing
of the Court was normally on the side of striking down state policies. The
debate on the Court turned on how far more conservative-centrist Justices
like Lewis Powell or Byron White were willing to go in extending the scope of
those precedents.
B.
The Early Rehnquist Court
By the end of the decade, the Justices were differently situated. Chief
Justice Burger had been replaced by the Associate Justice who had been consistently on his right, William Rehnquist.74 Robert Bork’s nomination had
failed,75 but Reagan had been able to add three new members to the
Court.76 As a consequence, the Court now had a sizable conservative bloc
consisting of Rehnquist, O’Connor, Kennedy, and Scalia, which could look to
the often sympathetic Byron White to form a narrow majority against an
increasingly solid liberal bloc consisting of Brennan, Marshall, Stevens, and
Blackmun. The landmark liberal precedents were several years older, and
the intellectual underpinnings for an alternative constitutional jurisprudence
were being developed.
In 1989 and 1990, the Court was showing a shift in both the overall level
of activity in judicial review and in its target. The Court struck down laws in
half a dozen fewer cases than it had in the two-year period at the start of the
decade. Moreover, the composition of the laws being struck down had
begun a dramatic shift, with cases involving federal statutes now composing a
third of the total, and the overall number of cases striking down state statutes
cut nearly in half. The Court was less active in striking down statutes but
more focused on Congress.
70 On the idea of interbranch constitutional dialogues over the details of constitutional rules, see NEAL DEVINS, SHAPING CONSTITUTIONAL VALUES (1996), which argues that
most landmark Supreme Court decisions “cannot be understood without paying attention
to the politics surrounding them,” id. at 7, and LOUIS FISHER, CONSTITUTIONAL DIALOGUES
(1988), which asserts that “[t]he purpose of this book is to show that constitutional law is
not a monopoly of the judiciary,” id. at 3.
71 N.Y. State Liquor Auth. v. Bellanca, 452 U.S. 714, 718 (1981) (per curiam).
72 H.L. v. Matheson, 450 U.S. 398, 413 (1981).
73 Crawford v. Bd. of Educ., 458 U.S. 527, 545 (1982).
74 Tom Wicker, Foreword to THE REHNQUIST COURT, supra note 17, at 3, 10.
75 Id. at 11.
76 Id.
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The decline of the centrists (whether through retirement like Stewart or
drift to the ideological wings like Blackmun) translated into narrower majority coalitions in judicial review cases. Constitutional cases were routinely
decided by five- or six-Justice majorities, whether the legislation was the product of the national or state legislature and whether the outcome was to strike
down or uphold legislation. When the Burger Court voted to uphold legislation at the start of the decade, it did so with sizeable majorities. When the
early Rehnquist Court voted to uphold legislation, it often did so with only
the slimmest of majorities. More laws were surviving judicial scrutiny, but just
barely.
Despite these narrow majorities, the coalitions that formed in these cases
had a more mixed ideological profile than did those in the late Burger era.
The liberals on the Court were still the most likely to vote to strike down
legislation and were still quite likely to appear in the majority in a case invalidating statutory provisions (and the least likely to appear in majorities
upholding statutes against constitutional challenge). But now they were
joined more often in those proclivities by conservative members of the Court.
Though Rehnquist was still unlikely to vote to strike down laws, Antonin
Scalia joined nearly as many coalitions to nullify legislation as William Brennan did, and the Court rarely struck down a law without Anthony Kennedy in
the majority.77 Surprisingly, this record was less the result of Kennedy (or
O’Connor) oscillating between Scalia and Brennan than all three joining the
same decision. Narrow ideological majorities were more likely to be built
from the left (swinging either O’Connor or Kennedy), but most decisions
striking down laws drew from both the left and the right wings of the Court.
The constitutional review of federal legislation played a more significant
role in the activism of the early Rehnquist Court than of the late Burger
Court. In these two years, the Court resolved well over a dozen constitutional
cases involving federal legislation, and nearly a third resulted in invalidation.
The conservative Justices, including Chief Justice Rehnquist, showed a markedly greater willingness to strike down federal laws than they did state laws.
But those cases often created strange bedfellows and did not reflect narrowly
ideological commitments. The narrow nullification of the federal Flag Protection Act pulled together Scalia and Brennan against White and Stevens.78
More often, Congress offended a broad coalition of the Justices, including
unanimous decisions striking down a congressional ban on adult telephone
messaging services79 and an effort to impose substantial civil as well as criminal penalties on those committing Medicare fraud.80 The Court also decided
some seemingly easy (if largely technical) cases in favor of Congress, unani77 Kennedy was not especially likely to vote to strike down a statute, but even in these
early moments on the bench, he was especially likely to be in the majority when a law was
struck down. He was almost as unlikely to dissent from a majority decision to uphold a
statute as Rehnquist was.
78 United States v. Eichman, 496 U.S. 310, 311 (1990).
79 Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 117 (1989).
80 United States v. Halper, 490 U.S. 435, 451–52 (1989).
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mously holding, for example, that the monetary “special assessment” provision of the Victims of Crime Act was not a bill raising revenue and so did not
violate the origination clause.81 But when the decision to uphold a federal
statutory provision against constitutional challenge was more closely contested, it was often the conservatives who lined up in support of Congress.82
During this two-year period, the Court heard fewer cases raising questions about the constitutionality of state laws, and it upheld those laws at a
higher rate. The four most liberal members of the Court were again most
likely to vote in favor of striking down state laws, and they were the least likely
to be found in a majority upholding a state law. The conservatives tended to
resolve new constitutional claims in favor of the states, as when the guardians
of Nancy Cruzan asked the courts to identify a “right to die” that would override Missouri’s living will statute.83 They also tended to pare back efforts to
extend or aggressively apply constitutional rules laid down by earlier, more
liberal judicial majorities. Thus, the conservatives accepted Arizona’s scheme
for determining death penalty sentences84 and Missouri’s system of abortion
restrictions over the objections of the Court’s liberals.85 A distinctly conservative invalidation of state law made an appearance in another minority
set-aside case,86 but more often than not a unified liberal wing of the Court
joined hands with one or more conservatives (usually Kennedy and
O’Connor) to strike down state laws.87 As George H.W. Bush succeeded
Ronald Reagan in the White House, the Court was engaged in a process of
conservative retrenchment in constitutional law. The result was a gradual
decline in judicial review of the states and of judicial nullification of state
policy decisions.
C.
The Late Rehnquist Court
In 1998 and 1999, there were no Warren-era Justices still on the bench.
The first President Bush had replaced Brennan and Marshall with Souter and
Thomas, while Clinton had replaced White and Blackmun with Breyer and
Ginsburg.88 The net result was, in some ways, a wash. White had often
joined the conservatives in recent constitutional decisions, while Marshall was
a bulwark of the liberal wing of the Court. Their replacements on the bench
81 United States v. Munoz-Flores, 495 U.S. 385, 387–88 (1990).
82 The most politically salient decision upholding a federal statute during these years,
however, relied on the liberal wing of the Court in order to save minority set-asides in the
allocation of broadcast licenses. Metro Broad., Inc. v. FCC, 497 U.S. 547, 552 (1990).
83 Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 265 (1990).
84 Walton v. Arizona, 497 U.S. 639, 655–66 (1990).
85 Webster v. Reprod. Health Servs., 492 U.S. 490, 499 (1989).
86 City of Richmond v. J.A. Croson Co., 488 U.S. 469, 511 (1989) (holding that the City
of Richmond’s treatment of citizens on a racial basis, with respect to awarding construction
contracts, violated the Equal Protection Clause).
87 Most of the majorities striking down state laws included both Kennedy and
O’Connor, but none were made without at least one of them.
88 Wicker, supra note 74, at 11.
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simply switched sides, with White’s successor joining the liberals and Marshall’s successor joining the conservatives.89 The late Rehnquist Court
remained narrowly divided with two sizeable ideological wings.
If the ideological balance on the Court was similar at the end of the
decade to what it had been at the beginning, its exercise of the power of
judicial review looked quite different, accelerating patterns that had made an
appearance early in the Rehnquist era. The Court struck down legislative
provisions in only a dozen cases during these two years, half of what it had
done in the sample from the late Burger Court. More famously, the traditional ratio of federal to state cases was reversed, with the Justices striking
down federal laws in twice as many cases as they did state laws. The decision
to invalidate laws was reached with even smaller majorities on the late Rehnquist Court, but the decision to uphold state and federal laws tended to be
more consensual. The Court was no longer upholding laws over the objections of a determined minority of the Justices. When the Court accepted
cases in order to uphold a statute against constitutional challenge, it did so in
order to correct the lower courts or settle political uncertainties rather than
to resolve its own internal disagreements about the direction of constitutional law.
The ideological orientation of the coalitions on the Court in judicial
review cases made a notable shift during this two-year period in the late
Rehnquist Court. At the beginning of the 1990s, judicial majorities striking
down laws were ideologically mixed but built from the left wing of the Court.
At the end of that decade, the conservative Justices were building invalidating
coalitions from the right. They were willing and able to put together narrow
majorities to strike down laws, and even more mixed coalitions included a
significant number of conservative Justices. Scalia, O’Connor, and Kennedy
were the regular members of invalidating coalitions, while Stevens, Souter,
and Breyer primarily joined in decisions striking down state laws. In the earlier samples, the more liberal Justices displayed a distinctly greater propensity
for voting to strike down laws in the cases that had come before them. In
1998 and 1999, there were relatively small differences among the Justices in
their propensity to vote to nullify laws. Perhaps nothing reflects the shift
from the early 1980s to the late 1990s more than that the conservative Justice
Thomas was the most likely to vote to invalidate legislation. Just as significant, Thomas was especially likely to vote against the government in cases
involving challenges to federal statutes, but he was among the least likely to
vote against the government in cases involving challenges to state statutes.90
The conservative Justices were now the ones most likely to be in a majority
89 Brennan’s successor, David Souter, quickly became a reliable vote for the liberals,
and the left-leaning Blackmun successor, Ruth Bader Ginsburg, became a leader of the
liberal wing of the Court.
90 The sharp decline in the number of cases involving judicial review of state statutes
allowed Thomas to maintain the unusual statistical position of being among the most likely
to vote to invalidate statutes overall and among the least likely to vote to invalidate state
laws specifically. Only the Chief Justice was less likely to vote to invalidate a state law dur-
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striking down legislation, and they oriented their efforts against federal statutes. Unlike the earlier periods, however, few of the Justices were left out of
decisions to uphold laws against constitutional challenge. The median size of
an upholding coalition was eight Justices, and only Justice Stevens was likely
to urge from a dissenting position that his colleagues strike down additional
statutes (and he particularly did so in cases involving state laws).
In contrast to earlier periods, at the end of the 1990s federal statutes
occupied most of the Court’s constitutional agenda. There were twice as
many constitutional cases decided involving federal statutes as state statutes
in this sample, and the percentage of constitutional cases decided against the
government was the same for both the state and federal governments. This
sample was, of course, at the tail end of the Court’s federalism offensive that
began in the mid-1990s and that repeatedly relied on five conservative votes
to strike down federal laws. But the federalism cases were always only a sliver
of the Court’s work in constitutional review. In 1998 and 1999, the “federalism five” dealt blows to Congress in two sovereign immunity cases.91 But the
Court also limited congressional authority in other cases great and small,
including the line-item veto,92 federal regulation of advertising for legal gambling,93 and a federal harbor tax.94 The conservative Justices were at the
core of each of those decisions save one,95 but in half of those cases they were
joined by Justices from the liberal wing of the Court. And while the Justices
accepted several cases in which they upheld federal statutory provisions
against constitutional challenges, they displayed little disagreement among
themselves over how such cases should be decided. Only one of those, however, could be regarded as politically salient—the adoption of decency
requirements for grants from the National Endowment of the Arts.96 The
issue provoked more furor in Congress than in the judiciary.
ing this two-year window, and he was somewhat less inclined than Thomas to vote against
Congress.
91 Alden v. Maine, 527 U.S. 706, 712 (1999) (holding that “the powers delegated to
Congress under Article I of the United States Constitution do not include the power to
subject nonconsenting States to private suits for damages in state courts”); Fla. Prepaid
Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 630 (1999) (holding
that congressional abrogation of state sovereign immunity from claims of patent infringement “cannot be sustained as legislation enacted to enforce the guarantees of the Fourteenth Amendment’s Due Process Clause”).
92 Clinton v. City of N.Y., 524 U.S. 417, 421 (1998) (holding that the line-item veto
violates the Presentment Clause).
93 Greater New Orleans Broad. Ass’n v. United States, 527 U.S. 173, 176 (1999) (holding that Congress cannot prohibit radio or television advertising of gambling in states
where gambling is legal).
94 United States v. U.S. Shoe Corp., 523 U.S. 360, 363 (1998) (holding that the Harbor
Maintenance Tax is not a fair estimation of services and thus is in violation of the Export
Clause because it is not a permissible user fee).
95 United States v. Bajakajian, 524 U.S. 321, 324 (1998) (holding that the forfeiture of
more than $350,000 for failure to report carrying said currency when leaving the United
States violates the Excessive Fines Clause of the Eighth Amendment).
96 Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 572–73 (1998).
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Cases involving constitutional questions about state laws took a back seat
at the end of the 1990s. Not only were there fewer cases of judicial review of
state laws and fewer decisions rendered against state governments, but the
cases that were resolved by the Court were less significant. These were, after
all, the years in which Mark Tushnet wrote of the chastened ambitions of the
Court.97 There was little being done with the state cases to call attention
away from those instances in which the Court struck down federal statutory
provisions. The most politically salient decisions involving state laws resulted
in the invalidation of state residential duration requirements for social welfare programs98 and Chicago’s loitering ordinance aimed at street gangs.99
Even those cases were decided by robust, ideologically diverse majorities.
In 1998 and 1999, there was relatively little to talk about regarding how
the Court was exercising the power of judicial review. The Court took few
cases, decided most of them by sizable majorities that crossed ideological
lines, and had little impact on the course of national politics and policymaking. There was little reason to change the established narrative that revolved
around the unusual set of federalism cases. But below that intriguing surface, the Court was reinforcing the pattern of the prior decade of hearing
fewer constitutional cases and invalidating far fewer laws, especially those of
the state and local governments.
D.
The Roberts Court
The final snapshot of judicial review comes from the early Roberts Court
in 2007 and 2008. By the end of 2008, the Court had not quite yet taken on
its current composition. After a long period of stability, Rehnquist and
O’Connor both left the bench and were replaced by two conservatives, John
Roberts and Samuel Alito. The polarized ideological profile of the late
Rehnquist Court was preserved, though the replacement of O’Connor perhaps solidified Kennedy’s standing as the pivotal centrist.100
In many ways, the Roberts Court in these two years was a continuation of
the exercise of judicial review by the late Rehnquist Court. But the Roberts
Court was even less active in invalidating laws than the Rehnquist Court had
been and lacked the signature constitutional agenda that had helped define
the Rehnquist Court of the late 1990s. Consistent with the overall pattern
illustrated in Figure 3, the Roberts Court struck down laws in fewer cases in
this snapshot than had the Court in any of the earlier three samples. The
Court found legislative provisions constitutionally defective in fewer than a
dozen cases.
97 See supra note 31.
98 Saenz v. Roe, 526 U.S. 489, 510–11 (1999).
99 City of Chi. v. Morales, 527 U.S. 41, 64 (1999).
100 The subsequent addition of Sonia Sotomayor and Elena Kagan, in place of Souter
and Stevens, did not alter the size of the liberal wing of the Court or move the median on
the bench (though Souter’s replacement may have shifted the center of gravity of the
liberal wing to the left). Their addition did mean that for the first time since the Nixon
era, the liberal wing of the Court was composed entirely of Democratic appointees.
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The dominant coalitions in these two years of the Roberts Court also
continued the tendencies of the late Rehnquist Court. The majorities that
formed to strike legislation tended to be extremely narrow, generally consisting of only five Justices, but the majorities that upheld legislation were generally broad (the majorities upholding federal statutes against constitutional
challenges were narrower than those upholding states’). Both liberal and
conservative Justices routinely voted to strike down legislative provisions. The
conservative Antonin Scalia and the liberal Ruth Bader Ginsburg had an
almost identical history of joining majorities to strike down laws. Scalia
joined two majorities striking down federal laws and three striking down state
laws; Ginsburg joined the majority in one federal case and four state cases.
The exercise of judicial review was not a story of conservative dominance but
of shifting coalitions that drew from both ends of the ideological spectrum.
Cases involving federal statutes occupied a smaller share of the Court’s
docket. The Court continued to strike down federal statutory provisions in
half the cases it considered. Whether upholding or striking down federal
legislation, the Justices were forced to rely on narrow majorities.101 On campaign finance, slim conservative majorities imposed limits on Congress.102
On military detainees, a slim liberal majority took the lead.103 Conservatives
and liberals likewise split in cases upholding statutes.104 The conservative
Justices were more likely to be in a majority actually striking down a federal
law, but there was little difference between how often liberal and conservative
Justices voted to strike down laws.
State laws occupied more of the docket, but the Court continued to
strike down state laws at a lower rate than it upheld them. The decisions to
strike down state laws were also narrow, but larger majorities joined decisions
upholding state statutes. The more liberal Justices continued to be more
likely to vote to strike down legislation in cases involving the states, while the
conservative Justices were more likely to vote to uphold state laws. Souter
and Ginsburg led the way in voting to strike down state statutes, both in joining majorities and in dissenting. The most conservative Justices were the
most likely to vote to uphold state laws and the least likely to strike them
down, but the differences between the liberal and conservative extremes
were not as stark in this snapshot. Kennedy showed himself to be ubiquitous
in majority decisions in this snapshot as well, joining nearly every majority
striking down a law and nearly every majority upholding one. Substantively,
the Court struck down (and upheld) a wide range of state laws raising a vari101 See, e.g., infra notes 102–03.
102 See Davis v. FEC, 554 U.S. 724 (2008); FEC v. Wis. Right to Life, Inc., 551 U.S. 449
(2007).
103 See Boumediene v. Bush, 553 U.S. 723 (2008).
104 See Gonzales v. Carhart, 550 U.S. 124 (2007) (upholding a partial-birth abortion ban
by a conservative majority); Watters v. Wachovia Bank, N.A., 550 U.S. 1 (2007) (upholding
a federal banking regulation by a liberal majority). Only once did both liberal and conservatives join a broad majority to uphold a federal statute. United States v. Williams, 553
U.S. 285 (2008) (upholding child pornography law).
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ety of constitutional questions. Both conservatives and liberals had their way
in high-profile cases, with conservatives carrying the Court in cases on gun
rights105 and desegregation106 but the liberal Justices controlling decisions
on the death penalty.107 Conservatives were at the heart of the coalitions
upholding state statutes against constitutional challenges in the most polarizing cases,108 but most decisions to uphold were endorsed by large majorities.
The conservative and liberal Justices disagreed about which statutes
ought to be struck down, but both wings of the Court were able to muster
narrow majorities to strike down laws. The liberal Justices would have preferred to strike down more state laws than a majority of the Justices were
willing to strike. By 2007 and 2008, the Court was working out the implications of its own recent precedents, whether in campaign finance, late-term
abortions, war powers, or the death penalty. Its agenda for constitutional
innovation was relatively narrow, however.
TABLE 1: AVERAGE MEDIAN
OF THE
INVALIDATING COALITION
Late
Burger
Early
Rehnquist
Late
Rehnquist
Roberts
Federal Laws
Stevens
White
O’Connor
Roberts
State Laws
Stevens
Blackmun
Breyer
Ginsburg
Note: Average median Justice voting in the majority in cases that constitutionally invalidated
provisions of federal laws and state laws.
As the Burger Court transformed into the Roberts Court, there were
fewer signs either that the Justices were on a mission to remake constitutional
law or that there was a large pipeline of unresolved constitutional disputes.
As the Justices settled the thorny issues that had been raised by the Warren
Court and the early Burger Court, they did not so much launch into new
efforts to put their own stamp on constitutional law as they did withdraw
from the constitutional arena. Neither the left nor the right was able to take
firm command of the Court, and to the extent that conservatives were often
able to put together majorities, they often used them to uphold state laws.
Although the Court was still capable of rendering controversial decisions,
such decisions were becoming more rare and were almost as likely to involve
instances of the Court upholding laws as striking them down.
105 District of Columbia v. Heller, 554 U.S. 570 (2008). Although Heller involved constitutional limits on federal power, the policy at stake in the case was endorsed by the city
leaders of the District of Columbia and not by Congress. See id. at 574–75. The politics of
the case pitted the national judiciary against a city, and the same majority soon made clear
that the constitutional law of the case applied equally in the federal and state contexts.
106 See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007).
107 See Kennedy v. Louisiana, 554 U.S. 407 (2008); Abdul-Kabir v. Quarterman, 550 U.S.
233 (2007).
108 See Engquist v. Or. Dep’t of Agric., 553 U.S. 591 (2008); Crawford v. Marion Cnty.
Election Bd., 553 U.S. 181 (2008); Morse v. Frederick, 551 U.S. 393 (2007).
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The majorities that were interested in invalidating state and federal laws
came apart. In the late Burger Court, Stevens was on average the median
Justice in the majorities that voted to strike both federal and state laws, as
Table 1 highlights. Since the early 1980s, the median member of majorities
striking down federal laws became more conservative, while the median
member of the majorities striking down state laws remained relatively liberal.
Ginsburg now sits at the center of the coalitions that form to strike down
state laws, but it is Roberts who sits at the center of coalitions to strike down
federal statutes. As the conservative wing of the Court grew, it turned its
attention to Congress. Meanwhile, the liberal wing of the Court continued to
vote to strike down state laws but had increasing difficulty commanding the
five votes necessary to take that action.
IV. THE ROBERTS COURT: AN OVERVIEW
The late Rehnquist Court was characterized by remarkable stability in
personnel, so much so that it gave rise to new discussions of reforming judicial tenure in the federal system.109 The final configuration of Justices on
the Rehnquist Court lasted from the addition of Justice Stephen Breyer in
the summer of 1994 to the death of Chief Justice William Rehnquist in the
summer of 2005.110 The stability of the late Rehnquist Court is rivaled only
by the distance between the appointments of Justice Gabriel Duvall and Justice Smith Thompson in the Marshall Court, which limited Presidents James
Madison and James Monroe to a total of only three Supreme Court appointments (though on a smaller bench).111
There have been far more transitions among the individuals who make
up the Roberts Court, but politically the current Court has remained surprisingly stable. Including the Chief Justice himself, the Court has seen the addition of four new members. The substitution of four Justices can make a
profound difference to the orientation of the Court, as President Franklin D.
Roosevelt illustrated with the rapid replacement of all of the “Four Horsemen” during his second term in the White House.112 In the case of the Roberts Court, however, two conservative additions filled in for two conservative
departures (Roberts for Rehnquist, Alito for O’Connor)113 and two liberal
109 See, e.g., Paul D. Carrington & Roger C. Cramton, Reforming the Supreme Court: An
Introduction to REFORMING THE COURT 3, 3–12 (Roger C. Cramton & Paul D. Carrington
eds., 2006); Justin Crowe & Christopher F. Karpowitz, Where Have You Gone, Sherman Minton? The Decline of the Short-Term Supreme Court Justice, 5 PERSP. ON POL. 425, 425 (2007).
110 Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure
Reconsidered, in REFORMING THE COURT, supra note 109, at 15, 27.
111 Id. at 27 n.41.
112 Terri L. Peretti, Promoting Equity in the Distribution of Supreme Court Appointments, in
REFORMING THE COURT, supra note 109, at 435, 438.
113 Justice Samuel Alito has thus far proven to be more strongly conservative in his
voting tendencies than the sometimes-pivotal Justice Sandra Day O’Connor, which likely
has some consequences on the margins. For much of her career, O’Connor’s voting tendencies placed her squarely within the conservative wing of the Court, but she became
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additions filled in for two liberal departures (Sotomayor for Souter,114 Kagan
for Stevens). Chief Justice Roberts assumed leadership of an ideologically
polarized and finely balanced bench in 2005, and the Court has remained so
during his tenure, with Justices Sandra Day O’Connor and Anthony Kennedy
playing the role of swing voter between two fairly stable coalitions on the
wings.
It is, of course, a cliché at this point to observe that as Justice Kennedy
goes, so goes the Supreme Court. Kennedy is not only the clear median
member of the Court, but he is also pivotal for many decisions, determining
whether the outcome of a case will be decided by the conservative wing of the
Court or the liberal wing.115 For Keck, Kennedy’s importance to judicial
decision making suggested that the contemporary Court would be unusually
activist.116 A rights-oriented jurisprudence that is hospitable to arguments
from both the right and the left is likely to translate into abundant opportunities for coalition-building on the Court and prolific judicial invalidations of
statutes.
Keck assumed that Kennedy was promiscuous, willing to join all comers
in striking down laws.117 Rather than providing the crucial fifth vote to invalidate myriad statutes, Kennedy has often voted to uphold statutes. In the
process, he has often denied one side or the other the necessary votes to
strike a law down. Rather than indiscriminately giving his vote away to all
sides, Kennedy often withholds his vote from short-handed coalitions. More
often than not, the disappointed would-be activists have come from the liberal wing of the Court.
The Court’s relative passivity may in fact be a function of Kennedy’s
remarkable reign as the decider-in-chief of the nation’s constitutional law.
For nearly three decades, O’Connor and Kennedy have held the key votes on
the Court and shaped the content and direction of constitutional law.118 By
now, legislators and lower court judges know the Kennedy Court’s preferences and have adjusted accordingly. Without the rise of dramatic new
issues, or a significant shift in the views of pivotal Justices, there should be
little need or opportunity for the Court to continue striking down legislation
at a high rate. Replacing Kennedy on the Court might well shift the ideal
point of the Court sufficiently to alter the status quo and generate a new
round of activity by the Court to bring the state of law into alignment with
the views of the pivotal Justices.
increasingly centrist over time. See Lee Epstein et al., Ideological Drift Among Supreme Court
Justices: Who, When, and How Important?, 101 NW. U. L. REV. 1483, 1505–08 (2007).
114 Although Justice David Souter was appointed by a relatively conservative Republican
president, he quickly became a reliable member of the liberal wing of the Court. Id. at
1508–09.
115 See KECK, supra note 25, at 7; HELEN J. KNOWLES, THE TIE GOES TO FREEDOM 1–2
(2009); Erwin Chemerinsky, The Kennedy Court: October Term 2005, 9 GREEN BAG 2D 335, 335
(2006).
116 KECK, supra note 25, at 7–8.
117 See id. at 7.
118 Id.
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But the history of the Roberts Court thus far might suggest the source of
the pressure for invalidations. Since Roberts assumed the center seat, the
Court has struck down statutes in roughly half the cases in which it substantively deliberated on the constitutionality of a state or federal law and came
to a determination on its constitutional validity.119 The coalitions that have
formed among the Justices to strike down laws have often been narrow ones.
The median size of the majority voting to strike down either state or federal
laws over the course of the Roberts Court has been five.120 By contrast, coalitions upholding statutes against constitutional challenges have been broader,
with a median of seven Justices. Especially on a polarized Court, such narrow
invalidating majorities are particularly unstable, with few viable options to
replace a Justice who might defect through a change of preferences or a
departure from the Court.121 But in the near term, the narrow invalidating
majorities are more vulnerable to change than are the more robust majorities
that have been voting to uphold legislation against constitutional challenges.
Unsurprisingly, this has left Justice Kennedy in the catbird seat. Kennedy is the single Justice most likely to be in the majority for a case invaliding
a statute; he was in the majority of nearly every case in which the Court struck
down a law. But Kennedy was also extremely likely to be in any majorities
upholding legislation against constitutional challenge. Coalitions to strike
legislation could not be easily made without him, and Kennedy regularly
found majorities willing to declare acts unconstitutional when he thought it
appropriate to do so.
We can gain a clearer picture of the pressures to invalidate legislation on
the Court by looking at the voting tendencies of the Justices from multiple
perspectives. Figure 4 represents the percentage of cases in which an individual Justice voted to strike down legislation as unconstitutional.122 The figure
organizes the Justices in descending order by how likely they were to vote to
invalidate state laws, as represented by the black bars. The propensity to vote
to invalidate federal laws is represented in Figure 4 by the gray bars, with the
horizontal lines indicating the median percentage of cases in which the individual Justices voted to invalidate rather than uphold a statute. This captures
not only the instances when Justices joined a majority of their colleagues to
actually declare laws unconstitutional, but also the instances in which the
119 The Court invalidated state laws in 51% of its cases and ruled against federal laws in
57% of its cases.
120 Less than a third of the cases striking down statutes (either state or federal) had
majorities of more than five Justices.
121 The polarization in the Court is evident in the bilateral correlations in the voting of
the Justices in judicial review cases. Sotomayor, Ginsburg, Kagan, and Souter form a tight
bloc, voting together but rarely voting with Thomas or Scalia. Likewise, Alito, Roberts,
Thomas, and Scalia form a tight bond, but rarely vote with Ginsburg or Souter. Thomas
and Scalia voted in near lockstep in these constitutional cases, while Sotomayor and Ginsburg have been equally joined at the hip.
122 Justice O’Connor is excluded, since she voted in very few cases involving judicial
review under Chief Justice Roberts. In each of those cases, she voted to uphold the challenged statute.
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FIGURE 4: PERCENTAGE
OF
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CASES IN WHICH AN INDIVIDUAL JUSTICE VOTED
INVALIDATE A STATUTE
TO
70%
Federal Statutes
60%
State Statutes
50%
40%
30%
20%
10%
ito
Al
as
om
ia
s
er
Th
ey
Br
al
Sc
rt
s
en
be
Ro
y
ev
St
ed
nn
Ke
ga
n
g
Ka
ur
in
sb
ay
G
m
to
So
So
ut
or
er
0%
Note: Horizontal line marks median of individual Justice votes to invalidate state statutes (black) and federal statutes (gray).
Justices dissented from a holding that a statute was constitutionally valid and
instead argued that the law exceeded constitutional limits. Since Justice Kennedy almost always voted with a majority, whether to strike down or uphold
statutes, his voting record is very similar to the record of the Roberts Court
itself.123 Other Justices present a mix of votes cast with majorities and in
dissent.
Although the alignment in Figure 4 is not perfect, the Justices in the
liberal wing of the Court tended to vote to strike state laws more often (thus
clustering on the left of Figure 4 with black bars that stretch above the
median line). The Justices in the conservative wing of the Court tended to
vote to strike federal laws more often (with gray bars stretching above the
median line). Justice Stephen Breyer is the one Justice located in an unexpected place. He was relatively deferential to both state and federal legislatures, which in Figure 4 places him with the conservative Justices in being less
likely to vote to strike state laws. From this perspective, Breyer is as close to
the Frankfurterian model of across-the-board deference as any current Jus-
123 The median percentage of cases in which the individual Justices voted to invalidate
differs somewhat from the percentage of cases in which at least five Justices collectively
agreed to invalidate a statute.
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FIGURE 5: PERCENTAGE OF CASES IN WHICH A JUSTICE CAST
VOTE TO INVALIDATE A LAW
A
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DISSENTING
70%
State Statutes
60%
Federal Statutes
50%
40%
30%
20%
10%
ito
y
ed
Al
s
nn
Ke
be
rt
as
Ro
om
ia
Th
al
Sc
er
ey
ay
m
Br
or
s
en
to
So
n
ga
ev
St
g
Ka
ur
sb
in
G
So
ut
er
0%
tice is willing to be.124 Of course, this still means that Breyer cast a vote to
strike legislation in nearly 40% of the cases resolved by the Court.125 Even
the most deferential Justices on the Roberts Court are fairly willing to declare
laws unconstitutional, whether that is Justice John Paul Stevens voting to
strike federal statutes in only a quarter of the cases or Justice Samuel Alito
voting to strike state statutes in less than a third of those cases.126
Figure 5 takes a somewhat different perspective on the tendencies of the
individual Justices. Figure 5 organizes the Justices by their propensity to vote
to invalidate state laws.127 Unlike the previous figure, however, Figure 5
focuses on just those votes in which the Justice dissented from a Court decision upholding the constitutionality of a statute. That is, Figure 5 shows how
often individual Justices would have preferred to invalidate a statute but were
124 Justice Elena Kagan shows the opposite pattern, voting to invalidate both state and
federal statutes at a disproportionately high rate, but she participated in a relatively small
number of cases in the dataset. Justice Kennedy shares her apparent propensity to vote to
strike down both federal and state laws at an above average rate.
125 To be sure, Breyer’s preferences about which statutes should be struck down have a
distinctly liberal tilt.
126 Of course, these tendencies are likely to be relative rather than absolute. With a
different docket posing different issues or statutes to the Justices, these relatively deferential Justices may well have been more willing to vote to enforce constitutional constraints
on legislatures.
127 That propensity is the percentage of cases upholding a statute against constitutional
challenge in which the individual Justice voted to invalidate the statute.
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restrained by their colleagues, evidencing a pent-up demand for greater judicial activism.128 It is perhaps unsurprising that on a relatively conservative
Court, the Justices in the liberal wing are more likely to be in dissent.129 But
notice that in this figure they are specifically in dissent from judgments
upholding statutes and would have preferred to strike down a law in those
cases. By contrast, the more conservative Justices rarely dissented in cases
upholding statutes. Consistent with the general pattern, the conservative Justices were more likely to prefer to strike down federal statutes, while the liberal Justices were more likely to prefer to strike down state laws. Even so, a
number of the liberal Justices also dissented often in cases involving federal
laws.
TABLE 2: COALITIONS
OF
JUSTICES
IN
CASES INVALIDATING STATUTES
Cases Invalidating Federal Statutes
Justices in Top Three
# of
Ideological Orientation of % of
Coalitions
Cases
All Coalitions Cases
Roberts, Alito, Scalia,
7
Conservative Coalition 50%
Thomas, Kennedy
Stevens, Souter, Ginsburg,
2
Liberal Coalition 29%
Breyer, Kennedy
Ginsburg, Breyer,
Sotomayor, Kagan,
1
Mixed Coalition 21%
Kennedy
Cases Invalidating State Statutes
Justices in Top Three
# of
Ideological Orientation of % of
Coalitions
Cases
All Coalitions Cases
Roberts, Alito, Scalia,
6
Conservative Coalition 42%
Thomas, Kennedy
Stevens, Souter, Ginsburg,
4
Liberal Coalition 37%
Breyer, Kennedy
Roberts, Stevens, Souter,
1
Mixed Coalition 21%
Ginsburg, Breyer
Finally, Table 2 highlights the most common coalitions that formed on
the Roberts Court in cases invalidating statutes. These coalitions can also be
characterized as having been built from either the left or the right. Conservative invalidating coalitions include no more than one Justice from the
128 Thus far, Justice Alito has shown no such frustration. He has not called for the
nullification of a statute in any dissenting opinion. When a majority has voted to uphold a
statute, Alito has been in agreement.
129 Dissents from cases striking down statutes show a far more mixed pattern. The
pent-up demand to uphold statutes against constitutional challenge has no clear ideological flavor.
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liberal wing of the Court, and vice versa for liberal invalidating coalitions.130
Since a large majority of the cases invalidating statutes relied on narrow
majorities and most cases divided the Justices along expected ideological
lines, there were relatively few mixed coalitions that contained more than
one conservative and more than one liberal Justice. Indeed, the pattern of
invalidating coalitions on the Court indicates just how deeply polarized the
Roberts Court is. There is rarely agreement across ideological lines to strike
down a statute. Either liberal Justices preferred to strike a statute or conservative Justices did, but rarely both.131
Table 2 both reinforces and complicates the standard narrative of a conservative Roberts Court, clarifying why the Court has been unsatisfying to
both the political left and the political right. Although a plurality of the
invalidating coalitions have been built from the right wing of the Court, the
liberal wing of the Court has been able to strike down statutes almost as
often.132 In particular, the liberal wing of the Court has often predominated
in cases striking down state laws during the Roberts Court. As a result, the
overall ideological profile of the cases in which the Roberts Court has struck
down statutes is distinctly mixed, even though relatively few individual cases
have been decided by ideologically mixed coalitions. When imposing limits
on legislatures, the Court has oscillated between its conservative and liberal
poles, rather than building broad-based coalitions or being consistently dominated by one ideological faction.133
130 For this purpose, the swing-Justice, Kennedy, is not counted as either conservative
or liberal. All other Justices are categorized as one or the other, in the conventional
pattern.
131 The unique instance of a five-person majority with a mixed ideological profile was
Philip Morris USA v. Williams, 549 U.S. 346 (2007), which held that the Fourteenth Amendment limited punitive damages, id. at 349, with a majority consisting of Roberts, Alito,
Kennedy, Souter, and Breyer, id. at 348. Every other mixed invalidating majority consisted
of six or more Justices. Even six-person invalidating majorities with a mixed ideological
profile were rare. Coalitions of six Justices favoring striking down a statute tended to build
from one ideological wing of the Court, include Kennedy, and draw in one Justice from
the other wing of the Court. Roberts and Alito were the only conservative Justices willing
to join those liberal coalitions, and from the left only Breyer and Sotomayor were willing to
join such conservative coalitions.
132 The absolute number of cases decided by a particular liberal coalition is relatively
small, however, because there has been more turnover in those members of the Court
since the selection of Roberts as Chief Justice. By contrast, Alito has been present for
nearly the entire length of the Roberts Court.
133 One might think that the Court’s reputation for conservative activism is driven by
the relative political salience of those particular decisions. It is true that cases invalidating
federal statutes are cited more by lower courts in the next three years than are any other
type of judicial review case, suggesting that such cases (predominantly decided by the conservative Justices) have at least had greater legal salience. The picture for their relative
political salience is much less clear. A standard measure of political salience of Supreme
Court cases is whether the decision was reported on the front page of the New York Times.
Cases invalidating federal laws receive greater attention from the Times than cases invalidating state laws, and invalidations of any type receive more attention than cases upholding
statutes. Over half of the federal invalidations got front-page treatment, but only a third of
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At the same time, the two wings of the Court have adopted somewhat
different attitudes toward state and federal statutes. When the Court strikes
down an act of Congress, the conservative wing of the Court is more likely to
be calling the shots. When the Court strikes down a state law, the liberal
wing of the Court is likely to be prominently represented in the majority.
TABLE 3: COALITIONS
OF
JUSTICES
IN
CASES UPHOLDING STATUTES
Cases Upholding Federal Statutes
Justices in Top Three
# of
Ideological Orientation of % of
Coalitions
Cases
All Coalitions Cases
Roberts, Alito, Scalia,
Thomas, Stevens, Ginsburg,
2
Conservative Coalition 22%
Breyer, Sotomayor,
Kennedy
Roberts, Alito, Scalia,
1
Liberal Coalition 22%
Thomas, Kennedy
Stevens, Souter, Ginsburg,
1
Mixed Coalition 56%
Breyer, O’Connor
Cases Upholding State Statutes
Justices in Top Three
# of
Ideological Orientation of % of
Coalitions
Cases
All Coalitions Cases
Roberts, Alito, Scalia,
Thomas, Stevens, Souter,
3
Conservative Coalition 43%
Ginsburg, Breyer, Kennedy
Roberts, Alito, Scalia,
2
Liberal Coalition
7%
Thomas, Breyer, Kennedy
Roberts, Alito, Scalia,
2
Mixed Coalition 50%
Thomas, Kennedy
Table 3 highlights the most common coalitions in cases upholding statutes against constitutional challenge. On the whole, these coalitions tend to
be broader, with a median of seven Justices in the sustaining majorities. Sevdecisions upholding federal law were similarly publicized (and cases upholding state laws
were rarely reported on the front page). But there is little difference between the amount
of attention received by invalidating decisions in which Justice Alito voted in the majority
and those in which Justice Ginsburg voted in the majority (using those votes as proxies for
the overall ideological tenor of the decision). Indeed, the Times was somewhat more likely
to give front-page attention to cases in which Ginsburg joined a majority striking down a
federal law and to cases in which Alito joined a majority to uphold a state law, which tends
to cut against rather than reinforce the standard narrative of an activist conservative majority on the Court. On the whole, the cases featuring the conservative Justices striking down
statutes do not appear to be unusually politically salient. For every Citizens United v. FEC,
558 U.S. 310 (2010), there is a United States v. Windsor, 133 S. Ct. 2675 (2013); for every
Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), there
is a Kennedy v. Louisiana, 554 U.S. 407 (2008).
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eral of these cases were decided by a unanimous Court (which was never the
situation in cases striking down statutes), and relatively few were decided by
narrow five-person majorities (only a quarter of cases upholding statutes were
decided by such narrow majorities, compared to over two-thirds of the cases
striking down statutes). As a result, a majority of cases upholding statutes
were decided by mixed coalitions that drew from both wings of the Court.
Even so, the Court displayed distinct ideological tendencies in its cases
upholding legislation. When narrower, more ideological coalitions formed
to uphold federal statutes, they were equally likely to come from the right or
the left. But when the Court narrowly upheld state statutes, conservative
coalitions tended to predominate. When liberal coalitions held sway in cases
evaluating the constitutionality of state laws, they almost always acted to strike
down rather than uphold the law. This is not, of course, to say that the liberal wing of the Court never supported upholding state statutes, but only that
they did so in cases that also attracted support from the conservative Justices.
CONCLUSION
The dramatic decline in the number of cases striking down state laws
that has characterized the contemporary Court has depended on keeping the
liberal Justices at bay. Had the liberal wing of the Court held a more stable
majority, many of the cases in which the Court in fact upheld a statute would
have flipped and turned into judicial invalidations. A smaller number (and
proportion) of cases involving federal statutes would have flipped the other
way, as a liberal Court would have upheld federal legislation in a somewhat
larger set of cases than the Roberts Court actually did. Whereas Justices Souter and Ginsburg would have led the charge for a more activist Court than we
have actually seen in recent years, there is no similar indication that Justices
Roberts and Alito would have driven a more conservative Court to be more
activist than it has already been. The Justices disagree among themselves
over which laws should be struck down, but on the whole (and given the same
docket) Justice Souter would have preferred that the Roberts Court have
struck down more laws while Justice Alito would have preferred that the Roberts Court have struck down even fewer laws.
The attention received by a handful of decisions obscured a more fundamental pattern that developed during the Rehnquist era and has come to full
flower under Chief Justice Roberts. Although conservative majorities did
organize to strike down an unusually large number of statutes, particularly
for violating key federalism principles, they had been simultaneously shifting
the Court’s constitutional docket away from state legislation and toward the
federal legislation that was under greater scrutiny. In the process, the Court
dramatically reduced the overall number of constitutional cases that it was
deciding and the number of cases in which it struck down legislation.
Over the past three decades, the Court has made a gradual transition
away from the extension and application of the liberal precedents of the Warren Court and the early Burger Court, but it has not replaced that caseload
with a similarly robust set of new constitutional commitments. Liberal Jus-
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tices had driven the exercise of judicial review to invalidate statutes well into
the 1980s. As the liberal wing of the Court lost support, the Court became
less interested in nullifying the actions of legislatures. A Court that often
turned on the whims of Justice Anthony Kennedy may have been more bipolar, sometimes empowering liberal-leaning majorities and sometimes empowering conservative-leaning majorities, but it was becoming less, not more,
activist. There are few signs that any of the Justices doubt their own role
within the constitutional system or believe in a generalized posture of judicial
restraint. They all prefer to be activist when they believe that the legislature
has made a constitutional error, and they are willing to override vocal minorities on the bench or political opposition outside the Court in order to
enforce their views of constitutional requirements. The Court may not need
to commit itself to a theory of judicial restraint, however, in order to be
restrained. The Justices are rarely able to assemble a majority to strike down
laws, and they have given little indication that they nurture an expansive constitutional agenda of the type that drove the Court to the height of its activism in the mid-twentieth century. As a consequence, Chief Justice Rehnquist
and Chief Justice Roberts have overseen a Court that has surprisingly become
one of the least activist in history, and perhaps have pointed the way for the
Court to retreat from the role that it played within the political system
through most of the twentieth century and make a return to the more modest judicial role that characterized the nineteenth century.